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TMI Blog2019 (9) TMI 1709X X X X Extracts X X X X X X X X Extracts X X X X ..... ot beyond that. Hon'ble Delhi high court s twin decisions RRJ Securities Ltd [ 2015 (11) TMI 19 - DELHI HIGH COURT] and SSP Aviation Ltd. [ 2012 (4) TMI 335 - DELHI HIGH COURT] decide the very question in assessee s favour going by the very reasoning. We conclude in these facts that the impugned assessments in assessment years 2009-10 and 2010-11 not sustainable in law. The same stand quashed. Assessment proceedings u/s 153C(1) - addition u/s 68 - Whether any incriminating material found or seized during the course of search? - HELD THAT:- Although the search assessment provision nowhere contemplates that addition should be strictly made on the basis of evidence found in the course of search or other post search material or in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. The department had also carried out a survey in assessee s case on 06.03.2014. All this culminated initiation sec. 153C proceedings against the assessee giving rise to various disallowance(s) / addition(s) to be dealt with in succeeding paragraphs. 3. Coming to former two assessment year(s) 2009-10 and 2010-11, learned authorized representative refers to the Assessing Officer s order-sheet forming part of the case records making it clear that he had proceeded to issue / initiate sec. 153C proceedings on 25.08.2016 after recording the corresponding satisfaction note. He appears to have been recorded his satisfaction after CIT (Central), Kolkata-1 s order dated 02.08.2016 transferring jurisdiction to him u/s 127 of the Act. Mr. Shah in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rongly supported validity of the impugned assessment(s). He took us to 153B(2)(1) (first proviso) that the Assessing Officer has framed the impugned assessment in these former two assessment year(s) strictly as per law and therefore, the same are liable to be upheld. 5. We have given our thoughtful consideration to rival pleadings. Relevant case record(s) stand perused. There can hardly be any dispute that the assessee is not the searched person since proceeded u/s 153C of the Act. And also that the jurisdictional Commissioner had passed his sec. 127 order to the Assessing Officer only on 02.08.2016. The Assessing Officer thereafter recorded his satisfaction that the search in issue had led the department s to some incriminating material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour going by the very reasoning. We conclude in these facts that the impugned assessments in assessment years 2009-10 and 2010-11 not sustainable in law. The same stand quashed. The assessee s other pleadings on merits are rendered infructuous. Its former two appeals IT(SS)A 06 07/Kol/2018 are allowed. 6. Next come the latter two assessment year(s) 2011-12 and 2013-14 involving IT(SS)A No.08 09/Kol/2018. The assessee s only grievance in these two appeal(s) is that both the lower authorities have erred in law and on facts in making sec. 68 addition(s) of unexplained cash deposit in bank amounting to ₹3,05,000 and ₹20,45,000/-; respectively. The assessee s case is that the same are not based on any incriminating materia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Their lordship of hon'ble Delhi high court have further summarized the legal provision as under:- 37. On a conspectus of Section 153A(1) of the Act, read with the proviso thereto, and in the light of the law explained n the aforementioned decisions, the legal position that emerges is as under: i. Once a search takes place under Section 132 of the Act, notice under Section 153A(1) will have to be mandatorily issued to the person searched requiring him to file returns for six AYs immediately preceding the previous year relevant to the AY in which the search takes place. ii. Assessment and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be computed by the AOs as a fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis of the findings of the search and any other material existing or brought on the record of the AO. vii. Completed assessments can be interfered with by the AO while making the assessment under Section 153A only on the basis of some incriminating material unearthed during the course of search or requisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made known in the course of original assessment. We observe in this backdrop that the assessee s case is covered under (iv) that although the search assessment provision nowhere contemplates that addition should be strictly made on the basis of evidence found in the course of search or other ..... X X X X Extracts X X X X X X X X Extracts X X X X
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